Starting August 1st, individuals who file retaliation or discrimination claims pursuant to the Minnesota Human Rights Act (MHRA) can now request a jury trial. The MHRA prohibits discrimination in employment, housing, public accommodations, public services, and education. The right to a jury trial belongs to the plaintiff or the "person bringing a civil action" rather than the defendant who is alleged to have violated the MHRA. For a brief analysis of this change go here.
This week the Federal Judiciary Center issued a report on (1) juror use of social media to communicate during trials and deliberations; and (2) attorney use of social media to conduct research on potential jurors during voir dire. This 2014 report is a follow-up on a similar report in 2011. To read my prior criticism of the 2011 report go here.
While this 2014 report does have some positive attributes, it still suffers from the same fatal flaw as the 2011 report. For example, like with the 2011 report, the 2014 report surveys federal judges to determine whether or not jurors improperly use social media. Judges are not necessarily in the best position to make this determination. Thus, when the report says that "social media use by jurors is infrequent" one has to question the accuracy of that statement. Why not ask the jurors themselves or the numerous consulting companies that are now advertising set prices to monitor the social media use of jurors see e.g., jury scout?
Another downside of this report is the revelation that some federal judges (120 out of 466) do not allow attorneys to research jurors online. I, along with others, think that these 120 judges are wrong. Why should attorneys be prevented from doing the same thing that employers, landlords, or first dates now do on a regular basis? In the Digital Age, it has become quite common to Google people before and after you meet them. I have previously written about the benefits of researching jurors online here.
On the positive side, this report contains a large number of sample internet-related jury instructions, which also brings me to my last point. Although this report is sorely lacking in many areas, it should be acknowledged that at least the Federal Judicial Center is attempting to bring attention to the impact of social media on jurors and jury selection. By publishing reports like this and sharing information such as jury instructions, judges can better understand how to prevent jurors from conducting independent research or making improper online communications.
The Tampa Tribune has an interesting article highlighting the efforts by some defense attorneys to make their clients more presentable to jurors. As the article points out, attractive defendants are less likely to be convicted than unattractive defendants. In certain instances, defense attorneys go beyond just putting a suit or some nice clothes on the defendant. For example, some defendants are instructed to put on glasses or use make-up to cover inflammatory tattoos.
This may be the question that some Cuyahoga residents are starting to ask as result of the latest effort to make jury duty in Cuyahoga County a little more pleasant. According to a recent article in the Cleveland Plain Dealer, court administrators have teamed up with the Cleveland Animal Protection League to allow jurors to interact with adoptable dogs during the lunch hour. Cuyahoga County Common Pleas Judge Kathleen Ann Sutula, who chairs the court's Jury Committee, states that bringing in adoptable dogs is an attempt by the courts to provide a better experience to jurors and to take advantage of a captive audience.
If you recently served on a jury and want to discuss your experience, I recommend that you contact Professor Andrew Guthrie Ferguson. He is starting a project in which he attempts to document the experience of jurors. In his latest article on the Huffington Post, Professor Ferguson discusses the importance of jurors sharing their stories.
John Bergendahl and Bruce Zimet, attorneys for Jim Sotolongo and Stephanie Musselwhite respectively, are putting forth a rather unique defense on behalf of their clients. It appears that the defendants are challenging the fact that during their trial security officials at the federal courthouse turned away prospective jurors who did not meet the dress code. While I haven't seen the motion, I could see the defense making a 6th Amendment argument here challenging the jury venire. The 6th Amendment is traditionally raised in instances involving the jury selection process. It will be interesting to see the government's response and how the court handles this motion.
This week the Indiana Supreme Court handed down a very interesting decision concerning police interrogation and impartial juries. In Bond v. State, the Indiana Supreme Court held that law enforcement can't tell suspects that their race will prevent them from getting a fair trial and an impartial jury. As a result of the court's ruling, the defendant's murder confession has been thrown out and it remains to be seen whether the government will continue with the defendant's prosecution.
This case arose from an interrogation of McLynnerd Bond, Jr. for a 2007 murder in Indiana. During the video taped interrogation of Bond, who is African-American, a detective from the Gary police department made the following statement
[d]on’t let twelve people who are from Schererville, Crown Point—white people, Hispanic people, other people that aren’t from Gary, from your part of the hood—judge you. Because they’re not gonna put people on there who are from your neck of the woods. You know that. They’re not gonna be the ones to decide what happens to you. You know that. I know that. Everybody knows that. All they’re gonna see is, oh, look at this, another young motherf***** who didn’t give a f***.
After more than 3 hours of questionning by the detective, Bond broke down and admitted to the murder. Bond later moved to suppress his confession. While neither the trial court nor the appellate court approved of the techniques used by the police detective, they nonetheless allowed the confession to be admitted into evidence. In overturning the lower courts, the Indiana Supreme Court found that the detective had indeed crossed the line. According to the state high court,
Bond was intentionally deceived as to the fairness of the criminal justice system itself because of the color of his skin. Regardless of the evidence held against him or the circumstances of the alleged crime, he was left with the unequivocal impression that because he was African American he would spend the rest of his life in jail. Unless he confessed. And in unfortunate days gone by, this might have been the case. But no one wants to go back to such a time or place in the courtroom, and so we will not allow even the perception of such inequality to enter the interrogation room.
The Indiana Supreme Court went on to say that
[a] police officer may engage in a number of tactics and techniques to induce a confession without rendering that confession involuntary. "Such questioning is undoubtedly an essential tool in effective law enforcement," and "[t]he line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw." Haynes v. Washington, 373 U.S. 503, 515 (1963). But today we hold that intentionally misleading a suspect as to his constitutionally guaranteed rights to a fair trial and an impartial jury, because of his race, sits squarely on the wrong side of that line.
As some may recall, last week I posted about the efforts of a New Jersey state legislator who recently introduced legislation to allow citizens to volunteer for jury duty. The post and information about the bill can be found here.
This week the South Jersey Times has come out with an editorial criticizing the bill. One of the stronger points made by the editorial is that
[t]he...eagerness to do this civic duty rarely walks hand in hand with pure neutrality
Last week in U.S. v. Wilkes a three-judge panel of the 9th Circuit Court of Appeals held that it is not a violation of the defendant's 6th Amendment rights to have a trial judge rather than a jury determine the defendant's criminal forfeiture amount. The defendant in this case was Brent Wilkes, a defense contractor who had been convicted of bribing former Congressman Duke Cunningham. Wilkes was sentenced to 144 months in prison and ordered to pay a $636,116 criminal forfeiture or a $500,000 fine.
On appeal, Wilkes argued,
that Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S.Ct. 2151 (2013), require that the jury find facts justifying an increase in either end of the range of the prescribed penalty. Wilkes further argue[d] that Southern Union Co. v. United States, 132 S.Ct. 2344 (2012), applied Apprendi and, by extension, Alleyne, to monetary penalties—which he contends includes criminal forfeiture.
In rejecting Wilkes's claim, the 9th Circuit ruled as follows:
Wilkes's argument is directly contradicted by binding Supreme Court precedent. In Libretti v. United States, 516 U.S. 29 (1995), the Court expressly held that there is no Sixth Amendment right to a jury verdict in a criminal forfeiture proceeding. The Supreme Court has cautioned courts of appeals against concluding that “recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 U.S. 203 (1997). Thus, “[i]f a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989). In compliance with the Supreme Court's instructions, we reject the argument that Southern Union implicitly overruled Libretti.